After Trans Mountain, we need a better way to consult with Indigenous groups

In an effort to avoid making the same procedural mistakes that killed the proposed Northern Gateway pipeline, the federal government drafted a plan it was confident would ensure the planned Trans Mountain expansion did not meet the same fate. And no area was more important to get right than the government’s court-imposed duty to consult with Indigenous groups opposed to various aspects of the endeavour.

The Federal Court of Appeal had found that Stephen Harper’s Conservatives had fallen well short when it came to listening to, and addressing, many of the concerns various First Nations had about Northern Gateway. Consequently, the court quashed federal approvals the project had received, ultimately sounding its death knell.

To make certain that didn’t happen with Trans Mountain, the Liberal government, among other things, extended the consultation period by four months, shared confidential information with First Nation groups that had been withheld during the discussions around Gateway, made a commitment to fund an Indigenous advisory and monitoring committee for the project and provided drafts of its consultation report for comment from native leaders.

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And yet it still wasn’t enough.

The federal court’s decision this week spiking, temporarily at least, federal approval of the Trans Mountain expansion was a devastating blow to the governments of Justin Trudeau, Alberta Premier Rachel Notley and, the country as a whole. Of course, that sentiment is not shared by everyone. There are many clearly delighted by the court’s decision, the economic plight of Alberta be damned. Regardless, this verdict is one we should all be concerned about.

What is abundantly clear now is the government is still uncertain about what it needs to do to fully meet the commitment to consult with First Nations on major resource projects. When the Supreme Court of Canada issued its ruling making this law, no one knew precisely how it would play out. The federal appeal court’s decision on Gateway gave us a hint. Now, this week’s decision by the same court is another reminder of just how profound that 2004 Supreme Court ruling was, not to mention the ramifications it has for the country’s economy.

That ruling said the government could not be held to a standard of perfection. What is required, the Supreme Court said, is that the planned government actions accommodate “the collective aboriginal right in question.” In this regard, it was imperative that Ottawa demonstrate reasonableness – a term that is certainly open to interpretation.

And this is the problem we have here. One person’s idea of being reasonable is another’s sense of obduracy. How, for instance, does a government “reasonably accommodate” the view by a First Nation group that a planned pipeline should not go ahead on the grounds the oil that would be flowing through it is harmful to the environment when burned? How does it meet the court’s test when confronted with the opinion held by Indigenous organizations that a tanker spill could be catastrophic to fish and wildlife or that the pipeline crosses their traditional territories and they simply don’t want it?

There is no way of reconciling those viewpoints with a plan to go ahead with the project.

If the duty to consult is here to stay, and it is, and it should be, we need to find a different way of determining whether that obligation has been met before the courts get involved. It is simply too costly a way of doing business. This setback on Trans Mountain is a multi, multimillion-dollar delay. Hundreds of jobs have been lost. This is serious stuff.

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There needs to be a way of knowing whether government has ticked all the boxes when it comes to consultation. Whether that is done by a tribunal that includes Indigenous representation, I don’t know. But leaving it to the Federal Court of Appeal to decide each time is simply not an option.

There is no question that the government made some mistakes, the National Energy Board certainly, too. But the government is also still flying blind a bit here as well. This is new terrain, where the rules of engagement are still being defined. What constitutes good faith negotiations as opposed to useless bafflegab is often in the eye of the beholder.

The court summed up its judgment expressing the view that the shortcomings in the consultative process, in this case, could be remedied fairly quickly. I’m not so certain. When it comes to addressing First Nations concerns around resource development, there is nothing simple or straightforward about it.